Want to Limit the Use of Police Force? Limit the State

"If you have ten thousand regulations,” Winston Churchill once wrote, “you destroy all respect for the law.”

Had he switched on the news this morning, he might have added another observation to his maxim: that “ten thousand regulations will eventually create ten thousand altercations.” In July of this year, on the streets of New York City, Eric Garner found this out the hard way.

Ultimately, “the State” is a synonym for “organized violence.” “If you refuse to pay your taxes,” Representative David Brat recently noted, “you will lose. You will go to jail, and if you fight, you will lose. The government holds a monopoly on violence. Any law that we vote for is ultimately backed by the full force of our government and military.” In consequence, Brat proposed, we should be careful about when and how that violence is utilized. Certainly, civilized nations need laws. But it is one thing to recruit armed men to prevent murder and rape and grievous bodily harm, and it is quite another to do so in order to regulate the manner in which cigarettes may be sold. Eric Garner was not killed while robbing a bank or starting a fight in a bar, but while selling tobacco on the street without a license. Is this really what the state is for?

Sadly, we will never know whether his killer’s defense would have stood up in court. Nor can we accurately assess to what extent a jury might have been sympathetic toward the linguistic and procedural minutiae upon which his brief would undoubtedly have relied. But whether one considers Officer Pantaleo to be a villain, a hero, or just an unlucky schmoe who was in the wrong place at the wrong time, the basic fact remains that if he had not been obliged to deal with Garner, Garner would not be dead. Roughly speaking, this argument runs like this: 1) The state of New York wished to regulate the sale and taxation of cigarettes; 2) Eric Garner wished to violate those regulations; 3) As a result, he was subjected to the full force of the law; 4) In the process of its application, he died.

Was Garner killed deliberately? No, of course he was not. Whatever the protesters might be chanting today, intent matters a great deal, and we are quite obviously not dealing here with a premeditated murder. Nevertheless, we should all be willing to acknowledge that Garner would never have been so much as approached had the city not wanted its pound of flesh in the first instance. Because there are consequences to all laws — however minor — it is incumbent upon us to ask if those laws are worth the risks that they yield. What, I wonder, would the anti-tax rebels who threw off the British Empire make of the news that a man had lost his life for peacefully selling a “loosie”? Once again: Is this why governments are instituted among men?

Evidently, this question occurred to others, too, for as soon as the decision had been announced, conservatives began to quote Cicero’s maxim — “the more laws, the less justice” — and to propose that by contriving fewer instances in which government force is deemed to be appropriate, we will limit the number of accidents and injustices perpetrated in the name of the state. Generally speaking, those on the right took a number of positions simultaneously: They were outraged by the behavior of both the cop and the Grand Jury, but they were also keen to note that the case was egregious and that it was newsworthy precisely because it was rare. There are hundreds of thousands of arrests made in New York every year, they observed, and this sort of thing rarely happens. Nevertheless, those who want to make sure it happens even less, they proposed, might stop calling for government that intrudes in every nook and cranny of our lives.

From what I can see, the Left found this reaction utterly perplexing — at best a distraction from the issues; at worst the cynical hijacking of a tragedy. Pushing back today, The New Republic’s Danny Vinik makes the case explicitly. “Cigarette taxes,” he writes, “did not cause Eric Garner’s death.” In a literal sense, this is true. But is the rejection not peculiar nonetheless? Presume that a person considers America to be a fundamentally racist place in which the police routinely treat blacks and other minorities with disdain. Shouldn’t that person then be keen to limit the number of instances in which those police come into contact with minorities? Shouldn’t he start to ask whether the use of force should be limited to those areas in which it is absolutely necessary: namely, the prevention of physical harm? Shouldn’t it be the case, in other words, that the more illustrative of American life one believes this sorry episode to have been, the more reflexively suspicious of government activity one should be?

On the face of it, we have a paradox here: To wit, that those who believe these incidents to be rare are the ones making a strong case against the sort of laws that bring cops into contact with minor criminals; while those who believe that these things happen as a matter of routine reject such talk out of hand. On closer inspection, however, this is not quite as peculiar as it seems. Rather, it goes back to the fundamental philosophical cleavages that animate and undergird American life. As a rule, progressives believe that human nature can be changed over time, that abuses of power can be rooted out with better education and the selection of more angelic enforcers, and that by playing with societal variables in precisely the right way we will be able to turn the state into a benevolent and loving force. In consequence, the only real villains in this case can be the cop and his prejudices, and to allow those to deprive us of laws designed to raise revenue, to protect community businesses, and to improve public health would be irresponsible and unfair.

Conservatives, by contrast, tend to be more convinced by the Hayekian asseveration that human nature is essentially fixed and that any consolidation of power serves eventually to attract to public service those who are least capable of bearing the responsibility. As a result, those of us on the right not only regard the Left’s refusal to connect the ideas of “government” and “force” as being illustrative of a more general unwillingness to acknowledge the consequences of its philosophy, but believe that anybody who wishes to diminish the abuse of power without also diminishing the scope of that power is irredeemably naïve — and possibly even dangerous. To start any reform by proposing that the state must improve the human condition and eliminate the vicissitudes of daily life is, in this way of thinking, to admit that you don’t have a plan at all.

In politics now, as always, the “why?” matters as much as the “what?” and the divergence of opinion over what we should do next quickly shatters any transient emotional unity. Today, despite our differences, we are outraged and appalled by the essential facts of the case. Tomorrow, we will focus more readily on our disagreement as to what the occasion should teach us. And, soon after that, the age-old fights about what constitutes “progress” will resurface and begin anew.